Conflict Avoidance, Management & Dispute Resolution Procedures

Question 1

How do you minimise/avoid conflict?

Answer 1

• Giving clear, written instructions and understand clients’ objectives
• Precise documentation and transparency
• Adopt proactive conflict avoidance risk analysis (what could go wrong)
• Keep good records with sufficient detail
• Prior to any instruction, it is essential to carry out a thorough conflict of interest check, to ensure conflicts are recognised immediately

Question 2

What is conflict management?

Answer 2

Involves processes, tools and skills to find ways to manage disputes

Question 3

What is dispute resolution?

Answer 3

• The resolution of a dispute between two or more parties
• Most basic form: negotiation, where parties themselves negotiate a resolution
• Most complicated form: litigation, formal process that uses the civil legal system to resolve a dispute

Question 4

What is alternative dispute resolution and what are the advantages?

Answer 4

• ADR are used instead of court litigation
• Contracts will identify the form of dispute resolution in the clause
• Advantages:
  o Quicker – take less time than court proceedings
  o Informality – outside a court
  o Greater opportunity for negotiation
  o Quality of decision making, as the outcome or award can be made by a surveyor rather than a judge
  o Confidentiality

Question 5

What are the various methods of dispute resolution?

Answer 5

• Mediation
• Arbitration
• Independent expert
• PACT

Question 6

What is PACT?

Answer 6

• Professional Arbitration on Court Terms
• A form of ADR specific to business tenancy renewals under the LL&T Act 1954
• An alternative to dispute resolution via the County Court, but only available if both parties agree and the correct steps are taken
• Can be used before/after formal lease renewal court proceedings have been issued
• Joint initiative between RICS and Law Society for determination of disputed terms by a property specialist rather than county court judge
• Dispute resolver can act as an arbitrator or as an independent expert, as agreed between the parties

Question 7

Advantages of PACT / How does PACT differ from a Court hearing?

Answer 7

• Usually cheaper
• Usually quicker
• Your default is going to the county court who do not have industry specific knowledge whereas PACT do

Question 8

Why would you avoid going to court?

Answer 8

• Time consuming
• Expensive
• Generally courts encourage disputing parties to resolve their disputes outside of the court system

Question 9

What is mediation?

Answer 9

• Neutral mediator facilitates discussions between the two parties to see if a solution can be found
• Confidential and informal process
• Usually conducted on a ‘without prejudice’ basis
• No decision making authority and cannot impose a resolution

Question 10

If a dispute arises, what methods of resolutions are available?

Answer 10

• Negotiation between parties
• Mediation with a 3rd party (not binding)
• Adjudicative process where the outcome is decided by the 3rd party (e.g. litigation or arbitration)

Question 11

What is the role of a surveyor in dispute resolution proceedings?

Answer 11

A surveyor appointed by a party to dispute can be a dispute resolver – an expert witness or advocate

Question 12

How should you act as an expert witness?

Answer 12

• A surveyor can act as an expert witness in front of a tribunal
• Expert witness must adhere to the rules of the tribunal and a surveyor expert witness must act in accordance with RICS Practice Statement and Guidance Note for Surveyors acting as expert witnesses (2014) – due to be updated 2024
• Have an overriding duty of care to the court and NOT CLIENT
• Should only accept instruction if no conflicts and you have the necessary experience
• Must give objective and unbiased opinion
• Expert witness cannot be appointed on a success related fee basis

Question 13

Give an example of a situation where a surveyor might act as an expert witness?

Answer 13

• Rent reviews disputes in front of an arbitrator / independent expert
• Business tenancy lease renewals determined by county court or a PACT dispute resolver

Question 14

What is the difference between an independent expert and an expert witness?

Answer 14

• An expert witness is appointed to present evidence to a dispute resolver
• An independent expert is a dispute resolver who decides to dispute

Question 15

What does acting as an advocate involve?

Answer 15

• A surveyor can represent a client in the role of advocate in front of certain tribunals, such as rent review disputes in front of independent expert/arbitrator
• Owes duty of care to client, and also tribunal to act properly and fairly
• Surveyor advocates must adhere to RICS Practice Statement and Guidance Note for Surveyors acting as advocates (2017)
• Surveyor advocate can advance their case by all fair and proper means, not compromise their professional standards, not mislead tribunal/opposing party and should provide valuation but not offer an opinion